Re: The GPL means what you want it to mean

From:

Rjack

Subject:

Re: The GPL means what you want it to mean

Date:

Fri, 03 Apr 2009 07:44:43 -0400

User-agent:

Thunderbird 2.0.0.21 (Windows/20090302)

amicus_curious wrote:

The constructions created by any compiler are fairly atomic in
nature and it is unlikely that anyone could make a case that the
compiler output, constructed of some collection of these constructs
based on the programmer's arrangement of source code syntax and
order, would ever be a unique expression fixed in a media as
defined by the copyright laws. This whole discussion is akin to the
arguments in theology regarding how many angles can dance on the
head of a pin.

The Free Software Foundation loves to start controversies about
matters such as "GCC generated object code" for good reason. It is the
same strategy used by religious fundamentalists when arguing against
evolution being taught in the schools. By setting the stage whereby
people are debating such minor nuances, an underlying impression is
generated that the GPL is actually a legally enforceable document.
This is how fundamentalists manage to elevate "creation theory" to
the level of scientific theory in serious discussions.
In certain respects, you have to credit the Free Software Foundation
for being politically astute. They began years ago claiming that their
marvelous license wasn't a contract. Despite the best efforts of
people like Professor Micheal Davis of Cleveland State University to
explain to Richard Stallman that the GPL would be considered a legal
contract:
"So. Why is this an issue? To allow the GPL legal effect but to avoid
some real or imagined consequences of it being treated as a contract
by the law? I'm afraid you can't have one without the other; to
repeat, if it's enforceable, it is, in essence, and in the end, a
contract."
http://lists.essential.org/upd-discuss/msg00131.html
The "real or imagined consequences of it being treated as a contract
by the law" are two-fold. First, as a matter of contract law the GPL
is unenforceable. Second, as a matter of copyright law it is preempted
by 17 USC sec. 301.
The FSF persisted in claiming that the "GPL was a license not a
contract", http://lwn.net/Articles/61292/ , and an urban legend was
cleverly established.
Hundreds of RMS's acolytes and other blogs repeated this mantra with
unstoppable fervor. The Free Software Foundation has *never* advanced
a legal argument to refute the fact that the GPL is contractually
unenforceable and preempted by the Copyright Act. The FSF to this day
has never admitted that a copyright license is a contract. They file
groundless lawsuits and then immediately voluntarily dismiss them
without court review in an effort to convince folks that the GPL
has legal teeth.
People should never allow the GPL to be *assumed* to be legally
enforceable until the FSF abandons the utterly crackpot legal theory
that "a license is not a contract". Any discussions about the claims
of GPL effects on details such as "GCC generated object code" simply
generate further support for the false assumption that the GPL is an
enforceable license.
Sincerely,
Rjack :)